A marriage is a legally recognised status which attaches mutual legal rights and duties on the marrying couple. There are strict rules on who can and who cannot marry each other.
Same sex couples can now legally marry in the UK but they can opt to form a civil partnership if they choose. These were introduced by the Civil Partnership Act 2004 and are very similar to marriage.
A marriage/ civil partnership may be classed as valid, void or voidable depending on the circumstances.
Valid marriage/ civil partnership
These are binding on everyone and can only be ended on death, divorce or dissolution. A valid marriage must be:
- Voluntary – the parties getting married must consent to the wedding. The Forced Marriage (Civil Protection) Act 2007 protects individuals against being forced to marry without their free and full consent.
- For life – the parties should intend that the marriage is to last for life when they enter into the marriage, although a marriage can be brought to an end by divorce. Couples cannot remarry until their divorce is finalised.
- Carried out in accordance with the Marriage Acts 1949-1994 – the marrying couple must give notice to their local register office and have a religious ceremony or civil ceremony at an approved premises at least 28 days after giving notice. They must exchange the required formal wording , have at least two witnesses to the marriage, and sign the marriage register or civil partnership document. The wedding must be carried out by someone authorised to register marriages.
When are marriages/civil partnerships void?
Void marriages/ civil partnerships never actually come into existence because of a fundamental defect.
Under s 11 of the Matrimonial Causes Act 1973, a marriage celebrated after 31 July 1971 will be void if:
- the parties are within the prohibited degrees of relationships;
- either party is under the age of 16;
- at the time of the marriage either party was already lawfully married or in a civil partnership with someone else.
Two people are not eligible to become civil partners if:
- they are not of the same sex;
- either of them is already a civil partner or lawfully married;
- either of them is under 16 years old;
- they are within the prohibited degrees of a relationship.
People aged 16 or 17 need permission from their legal parent /guardian to marry/ form a civil partnership. If they do not get permission, the marriage will not be void, however, unless the parent/guardian puts a notice against the marriage on the marriage register.
The prohibited degrees of a relationship
If two people within the list below marry each other, they are in the prohibited degrees of a relationship and the marriage will be automatically void. The marriage would legally have never come into existence so there will be no rights or responsibilities enforceable against each other:
- child of a former civil partner (stepchildren);
- child of a former spouse (stepchildren);
- former civil partner of a grandparent (step-grandparents);
- former civil partner of a parent (step-parent);
- former spouse of a grandparent;
- former spouse of a parent;
- grandchildren of a former civil partner;
- grandchildren of a former spouse;
- parents/ children;
Presumption of marriage
There is a presumption that a marriage ceremony has complied with all the legal requirements set by English law where there is evidence to show a ceremony has taken place and the parties have since lived together as husband and wife.
This has been introduced to protect those who have a ceremony which they believe to be a legally binding marriage to later find out certain requirements to create a legal binding marriage under the law of England and Wales was not included.
Voidable marriages and civil partnerships
These partnerships are valid until they are annulled. They will be voidable if any of the following has occurred:
- the marriage has not been consummated due to the incapacity or willful refusal of either party;
- either party to the marriage did not validly consent to it (ie, the consent was a result of a threat, a mistake, or unsoundness of mind);
- at the time of the marriage either party was able to consent but was suffering from a mental disorder to such an extent as to be unfit for marriage;
- at the time of marriage either party was suffering from a communicable venereal disease;
- at the time of the marriage the female was pregnant with another man’s baby.